June 12, 2007

On Law Professors Misrepresenting Rorty and Philosophy: Comments on Luban and Tamanaha

Rorty argued that academic philosophy, especially analytic philosophy, is a pointless discipline that we should simply ignore. This view appeared in his 1979 masterpiece Philosophy and the Mirror of Nature, but it became increasingly spirited and blunt in the essays he wrote over the next twenty years, collected in six anthologies.

This, however, is a misleading way to describe Rorty's critique, and not only because "analytic" philosophy doesn't exist anymore. (See the "Introduction" to my The Future for Philosophy[OUP, 2004] for more on this.) As Jaegwon Kim correctly pointed out in an illuminating 1980 essay, the argument of Philosophy and the Mirror of Nature is directed against three very general doctrines, none of which are peculiar to (or even distinctive of) English-speaking philosophy in the 20th-century. Kim identified them (again, correctly) as:

(1) The Platonic doctrine concerning truth and knowledge, according to which truth is correspondence with nature, and knowledge is a matter of possessing accurate representations.

(2) The Cartesian doctrine of the mind as the private inner stage, "the Inner Mirror," in which cognitive action takes place. The Platonic doctrine of knowledge as representation was transformed into the idea of knowledge as inner representation of outer reality. The Cartesian contribution was to mentalize the Platonic doctrine.

(3) The conception of Philosophy according to which it is the business of philosophy to investigate the "foundations" of the sciences, the arts, culture and morality, and adjudicate the cognitive claims of these areas. Philosophy, as epistemology, must set universal standards of rationality and objectivity for all actual and possible claims of knowledge.

As Kim note, there are many philosophers who would be identified as "analytic" who reject all of these views; but more importantly, there are plenty of philosophers whom no one would dub "analytic" who embrace one or more of these. (Kant, Hegel, and Husserl, for example, are far more committed to versions of (3) than, say, Quine or Kim or Jerry Fodor, among recent and contemporary philosophers usually deemed to be "analytic.") Rorty's attack on these three doctrines, then, was not an attack on the now defunct "analytic" philosophy of the mid-20th-century; it was an attack on the central concerns of philosophy going back to antiquity. The problem with Luban's way of putting the point--which is all too typical--is that it gives the wholly false impression that Rorty was simply overcoming a "recent" blip in the history of philosophy ("analytic" philosophy) in order to return the discipline to its "traditional" concerns. (Luban probably did not intend that last implication.) In fact, the opposite is the case: Rorty, like Marx (though for different reasons), would have us give up two thousand years of philosophical inquiry in order to do something else. He pitched part of that case as being against "analytic" philosophy, though the latter was far more continuous with the philosophical tradition than Rorty's (hard to pin down) alternative.

It is certainly true that parts of Philosophy and the Mirror of Nature rehearse Quinean and Sellarsian critiques of the logical positivist version of "analytic" philosophy, but even here Rorty drew conclusions that neither Quine nor Sellars necessarily thought followed. So, for example, Quine would quite agree with Rorty that we need to give up (3): philosophy is not, contra Kant, "the Queen of the sciences." For Quine, we might say, "science is the Queen of what is true and knowable," and so philosophy is, at best, the "handmaiden" of the empirical sciences. What Rorty needs to explain is why that is not the right alternative to (3)--as opposed to Rortian epistemic promiscuity, in which (as Luban observes) "there are absolutely no rational grounds for preferring scientific accounts of nature to New Earth creationism," a philosophical thesis that is rather hard to take seriously (partly for the reasons I discuss here).

Rorty argued that contemporary analytical philosophy is preoccupied with illusory philosophical problems, much of it a wasted effort. He urged philosophers to instead focus their attention on social, cultural and political problems. Rorty observed that "what does not make a difference to practice should not make a difference to philosophers." When there is no longer an audience outside the discipline that displays interest in philosophical problems, that problem should be "viewed with suspicion," he wrote.

The first philosopher to endorse the pragmatism of the first quote was Marx in the 2nd Thesis on Feuerbach--questions that make no difference to practice are "purely scholastic," and so not worth the trouble, Marx claimed--and his immediate target was obviously not "analytical philosophy," but the metaphysics and epistemology of German Idealism from Kant to Hegel. Yet his broader target, like Rorty after him, was the entire philosophical tradition going back millenia. But Tamanaha's second formulation of the Rortian position (and Rorty himself was guilty of this same slippage) is far weaker: instead of "difference to practice" as the criterion of intellectual value, we substitute the criterion of "audience outside the discipline." But by that criterion, much that is called "analytical" philosophy--now meaning nothing more than Anglophone philosophy that aims at clarity and argumentative rigor--easily passes muster, as scholars in linguistics, computer science, and psychology, for example, can all attest. Although contemporary Anglophone philosophy is the most richly interdisciplinary of all the humanities, Rorty, amazingly, left scholars in literature departments, and some law professors, with the opposite impression.

As usual, anonymous comments are unlikely to appear, and comments that are not informed and substantive certainly will not appear.

Anthony Ciolli and Other Autoadmit Posters Sued...

...finally and deservedly so. Given the horrendous nature of the defamation, sexual harassment, and/or threats of sexual and criminal violence for which these individuals are responsible it is a reasonable bet that, as their identities become public, Mr. Ciolli will not be the only person unemployable in the legal profession. (The link, above, also includes a link to the complaint which has details of the tortious abuse and harassment the defendants' victims suffered.) Kudos to attorney David Rosen and my former colleague Mark Lemley for representing pro bono the victims.

UPDATE: Bizarrely, two law professors, Anne Althouse (Wisconsin) and Glenn Reynolds (Tennessee), make light of the plaintiffs' claims, and are duly taken to task here.

AND ONE MORE: More on the case from the Wall Street Journal law blog, which includes the following remarkable comment by Eric Goldman (Santa Clara): “'People say nasty things on message boards all the time, but we don’t have cause of action just for hurt feelings," says Goldman. 'It’s too early to tell' whether the plaintiffs were legitimately threatened or defamed by the posts, or the court finds this to be an overreaction, he says." Of course, the complaint did not state a cause of action for "hurt feelings," but for defamation, portraying the plaintiffs in a "false light," intentional infliction of emotional distress, invasion of privacy, and the like. One wonders what Professor Goldman's standards of decency must be like if he really thinks that any grown-up is going to dismiss the lawsuit as an "overreaction."

June 7, 2007

UT Law Grads Thinking About the Teaching Market

Any graduates of the University of Texas School of Law who are thinking about the law teaching market for this fall: please contact me (if you have not done so already) so we can begin preparing our materials on the UT candidates. Thanks.

NetworkWorld Covers the Autoadmit Fiasco

June 6, 2007

Alabama Offers Sparkman Chair to Washington & Lee's Krotoszynski

Ronald Krotoszynski (administrative law, constitutional law, comparative public law) at Washington & Lee University has been offered the John J. Sparkman Chair in the law school at the University of Alabama, where he will visit during the 2007-08 academic year before making a decision on the offer.

June 5, 2007

Hurd to Step Down as Illinois Dean, and Return to Faculty

Heidi Hurd, who as Dean for the past five years of the University of Illinois College of Law has almost completely transformed that institution, will be stepping down this summer to return to the faculty. As soon as a news item is posted, I will link to it. Dean Hurd will be a tough act to follow, but she has certainly left the school in a highly competitive position.

June 4, 2007

Citation Study Methodology

A colleague at DePaul made the helpful suggestion that I should describe the methodology for the citation study for which I have been soliciting corrections to the draft faculty lists. I shall utilize the same search methodology as in the July 2005 study. The two differences will be that (1) we shall search every non-emeritus tenure-stream member of the academic faculty, in order to secure the per capita rate of citation; and (2) the searches will be confined to literature in the databases that has appeared from 2000 to the present. (We will also need to employ a discount factor, since the data collection will take several days, during which time the database may increase in size. We will use the citation total for Cass Sunstein as the measure of how much the database increases during the period when the data is being collected, since he is the most frequently cited legal scholar in the U.S.)

I would be pleased if schools want to submit the results of self-studies as a check on our process. The data will probably be collected in late June or in early July.

I would welcome constructive feedback aimed at improving the method; I have received lots of enormously helpful feedback over the years. But please, if you are going to comment, try to do so in a way that is not transparently self-serving; I have already received too much of that, and it is tiresome. Think of this from the standpoint of: what is the most effective and efficient way to measure the scholarly impact of a law faculty, taking into account the limitations of the available databases? Examples of questions on which I am especially interested in hearing people's views are: (1) whether there are better databases than Westlaw's JLR database or whether there are good databases to supplement the JLR database; (2) whether most clinical faculty are now expected to produce scholarship as a major portion of their duties (this bears on the question of whether it is fair to include clinical faculty in the study--so far, I have only heard from clinical faculty seeking inclusion; I have yet to hear from any Deans or non-clinical faculty making the case that their clinical colleagues should be included).

Do not report that the Westlaw JLR database does not include some journals in which law professors publish. Everyone knows that (it is certainly true in my own fields). We are looking at per capita impact of entire faculties; unless there is some reason to think that the gaps in the database will produce systematic advantages or disadvantages, the fact that it does not include your favorite journal is neither here nor there. (It does not include the journal I edit, Legal Theory, which may not be my favorite journal, but it's one I like!!!)

Only signed, verifiable comments will stand a chance of being published. (Even though I wrote this last time, some people submitted anonymous comments. None of those appeared, needless to say.) I will approve those comments which make a substantive point that is actually relevant to the issues noted above. Irrational and self-serving rants, like Professor Neumann's, can go elsewhere. (I have been fortunate to receive some quite informative e-mails from clinical faculty, and I would like to hear from more.)

June 3, 2007

"Chip on the Shoulder" Department

Someone named Richard Neumann, who teaches civil procedure and legal writing at Hofstra, thought to cc: me on an e-mail he sent to a listserve for, I believe, clinical law professors. He was "reacting" to this. He wrote:

The methodology makes this study worthless. Not only does it exclude about 70% of law school faculties, but at the 30% that are included, it excludes some of those most brilliant people I know. For example, look at Leiter's list of faculty at NYU and several other schools, purged of clinical and legal writing faculty. Leiter's study deserves ridicule, not only for its values, but also for its sloppiness. In a rigorous social science department, it would be laughed at as amateurish because it is unlikely to produce an accurate picture of what it purports to study and because it reflects the researcher's assumptions rather than an open-ended inquiry.

Since the original posting had not described the methodology (though it will be similar to what Eisenberg & Wells and I have used in the past), this irrational outburst was a bit, shall we say, surprising. In an effort to rank the top 35-40 faculties (which I explicitly noted was the goal) by scholarly impact, there is no reason to study all law faculties, unless one really had no idea which faculties stood a chance of being in the top 35-40. But since, as noted, we've done these studies before (and with many different mixes of faculties), we have a fairly good, if rough, idea of which 50 faculties or so have a good chance of ending up in the top 35-40, though we don't know in what order, of course. (A colleage at DePaul made the good suggestion via e-mail yesterday that I post the methodology, so that schools might undertake self-studies, which would serve as a helpful corrective to omissions; I will do so tomorrow. And, as I also noted yesterday we may yet add faculties to the list of 49.)

In any case, I don't think Professor Neumann's little outburst has much to do with his concern with social science methodology, as opposed to my failure to appreciate "some of those most brilliant people" he knows, namely, "clinical and legal writing faculty," who are excluded from the faculty lists. Of course, the proposed study was not aimed at evaluating the "brilliance" of anyone; it was aimed at evaluating, in the first instance, scholarly impact as measured by citations in the legal academic literature. Since clinical and legal writing faculty do not, typically, have the same obligations to produce scholarship that tenure stream academic faculty have, it seemed unfair in a study of per capita impact to include those faculty and then "evaluate" them by reference to a criterion that isn't always apt for what they do. (I think, for example, that this achievement by our capital punishment clinic at Texas is hugely impressive, but I have no reason to think a per capita citation study would do anything to reflect the excellence of our clinical faculty in this area.) Of course, there are clinical and legal writing faculty who produce scholarship; that is, quite obviously I would have thought, not the point. The point is that, at most schools, it is not their primary duty nor the primary measure of their professional excellence. A study of the quality and impact of clinical and legal writing faculty would no doubt be a separate and worthwhile undertaking; perhaps Professor Neumann will undertake to enlighten us in this regard with his distinguished command of social scientific methods.

And [Harvard professors will] tell you that only with the uptick in lateral hires (starting slowly under Clark, and increasing dramatically under Kagan) has HLS returned to a position of being able safely to say that its faculty comprises superstars of academia across the board.

Our anonymous professor writes:

Well, they can say that safely, but they can't say that accurately. Person for person, the Harvard faculty is still pretty weak. It's not as bad as it was 5-10 years ago, when it was sort of an open joke. But it's only maybe in the top 5 on a person-for-person basis. Better quality faculties would include Yale, NYU, Chicago, & Stanford. Plus, a bunch of Harvard's recent hires have been mediocre.

That's part of the irony with Elhauge's blogging about the new Harvard entry-level standards: Harvard has hired a bunch of people that are not very good, and that are very likely to prove themselves duds. So sure, Harvard will hire like that for a while. It will be the new big thing, and the Harvard faculty will feel very good about it. But eventually they'll see it's not working for them, and in another 10 years they'll pick a different approach.

I guess I'd nominate a particular NYU professor as the likely author of this rather nasty comment, especially since NYU is so obviously the "odd man out" in a list of faculties notable for their person-for-person or per capita strength. Nothing like anonymity to bring out the charm!

ADDENDUM: One of my esteemed NYU colleagues protests that the evidence adduced does not warrant the inference about the culprit, so I hereby withdraw it. I should note that I had in mind one other, non-publishable, piece of evidence for thinking a particular NYU professor had posted it, but that too probably underdetermines the conclusion drawn. So let us leave the catty remark standing on its own, with its author the sole possessor of his or her motives--and with my apologies for any unintended offense taken by colleagues at NYU.